This article was written by Nicholas Beech and Darcy Harwood.
On 11 August 2020, the Work Health and Safety Bill 2019 (WA) (WHS Bill), received positive endorsement by the Standing Committee on Legislation, bringing modernisation of work health safety laws one step closer to reality for Western Australia.
Thumbs up for the WHS Bill
After being introduced into the Western Australian Parliament in November 2019, the Standing Committee on Legislation has now considered several aspects of the WHS Bill including its duty, offence and penalty provisions.
The Committee has supported the introduction of the WHS Bill, satisfied that it fulfils its stated policy objectives of modernisation, harmonisation and consolidation. It has also found that the primary duties and obligations largely mirror, reflect and expand (where appropriate), the existing position under the Occupational Safety and Health Act 1984 (OSH Act) and the Mines Safety and Inspection Act 1994 (MSI Act) which the WHS Bill will replace.
The Committee noted some of the key changes of the WHS Bill include the introduction of a positive obligation on officers to exercise due diligence and that overall it was largely consistent with the Model Laws, apart from some elements which reflect recommendations by inquiries conducted post-implementation of the Model Laws. Importantly, these include the introduction of ‘industrial manslaughter’ offences.
Same ingredients – different cake
Considerable attention by the Committee was given to the proposed two-tiered industrial manslaughter offences. The plan is to create a more serious ‘crime’ offence which applies where a person acts with the knowledge that their conduct was likely to cause the death of an individual and acted in disregard of that likelihood and a less serious ‘simple’ offence where death occurs as a result of a breach of a Work Health Safety duty.
In relation to the ‘crime’ offence, the Committee found that:
- despite not using the term ‘gross negligence’, as presently applies to a level 4 offence under the OSH Act and MSI Act, the same test of ‘gross negligence’, as it is understood and applied in WA (and which differs from interpretations in other jurisdictions and previous inquiries), has been “baked into” the ‘crime’ offence through the requirement for subjective knowledge; and
- although using a test based on WA’s existing regime does not support the policy of harmonisation, the industrial manslaughter offence provisions already enacted across Australia are all drafted differently.
The focus of concern by many stakeholders has been on the proposed ‘simple’ offence. These concerns are primarily directed to the potentially low threshold of proof for the simple offence. The Commission expressed a number of views and made several findings on these issues including that:
- the ‘simple’ offence does not require the prosecution to prove an accused engaged in conduct knowing it was likely to cause the death of an individual;
- the ‘simple’ offence has been modelled on, and is in line with, the existing level 3 offence under the OSH Act and MSI Act which sets an objective standard requiring the accused to have done all that was reasonably practicable in the circumstances;
- the maximum penalties are significantly higher than those currently available under a level 3 offence and include imprisonment; and
- while the ‘simple’ offence does not include the word ‘negligent’, it imports a test of negligence, but not criminal negligence or gross negligence, by requiring proof of a duty owed, a breach of that duty and that that breach caused the death of an individual.
Overall in relation to the industrial manslaughter offences, the Committee made the following points:
- Legislative Framework: The offences are properly positioned in the WHS Bill as opposed to The Criminal Code.
- Defences: The defences and excuses in Chapter V of The Criminal Code are available to any person charged with industrial manslaughter offences.
- Officer Liability: An officer of a PCBU may be prosecuted for industrial manslaughter if it can be established that the PCBU’s conduct was attributable to any neglect on the part of the officer or was engaged in with the officer’s consent or connivance. This test is similar to that which presently applies under the OSH Act and MSI Act.
- Exclusion of Workers: A worker cannot be charged with industrial manslaughter, however may be prosecuted for a category 1, 2 or 3 offence under the WHS Bill or under The Criminal Code.
- Jurisdiction: There is concern from stakeholders that the simple industrial manslaughter offence is proposed to be prosecuted by WorkSafe in the Magistrates Court. An issue requiring further deliberation is whether it is more appropriate for the Director of Public Prosecutions to prosecute the offence and in a superior court, such as the District Court.
A mixture of harmony and disharmony
The duties and offences contained in the WHS Bill, including the proposed industrial manslaughter offences, are not substantively different to existing provisions in both the OSH Act and MSI Act, although penalties are potentially significantly higher. The proposed WA industrial manslaughter laws are not in harmony with equivalent laws across the rest of the country, although those laws are not in harmony with each other either. The Committee observed the absence of any ‘model’ industrial manslaughter laws and the ability for each jurisdiction to adapt the Model Laws to its own circumstances.